Chapter 15-1 Introduction

• Jurisdiction: United States

15-1 Introduction

Foreclosure cases follow the typical litigation process in Florida. The filing of a complaint precipitates a motion to dismiss or an answer, often along with discovery by at least one of the parties. Eventually, the plaintiff may file a reply to any affirmative defenses raised by the defendant and there may be a trial. At each step of this process, a motion or pleading, or any other paper, may be thought to be either frivolous or taken for the purpose of delay. Additionally, one or more of the parties may violate or allegedly violate one of the rules of procedure governing discovery or appeals, or a court order. A court can also sanction a party for spoliation of evidence.¹ The recourse for an aggrieved party under these circumstances is to seek sanctions.

Sanctions may only be made pursuant to rule, pursuant to statute, or pursuant to the courts' inherent authority.² Sanctions may include monetary fines and may become severe, up to the point of dismissal of a plaintiff's claim or the striking of a defendant's pleadings.³ Where a rule or statute provides for sanctions, the courts should look to the rule or statute, and should refrain from utilizing their limited inherent authority to enter sanctions.⁴ While technically not a sanction against the party, a court can also refer a party's attorney to The Florida Bar for violating the duty of candor, such as by failing to cite controlling authority, or for impugning the integrity of the judiciary in a court filing.⁵

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Notes:

^[1] For a thorough discussion of spoliation sanctions, see Patrick John McGinley, 10 Fla. Prac., Workers' Comp. § 40:5-40:11 (2019 ed.) (spoliation chapter by Michael Starks), which discusses the full picture of this legal hydra, which is a complex and intertwined concept that has developed over time, it is necessary to break spoliation down into its various components and analyze it under a number of interrelated rubrics, including "Remedy" (sanctions or tort damages?), "Identity" (plaintiff, defendant, or third-party spoliator?), "Culpability" (negligent, intentional, or bad faith?), "Prejudice" (How much has non-spoliator been prejudiced, and can the prejudice be remedied?), "Quality" (primary or secondary evidence?), "Duty" (is a duty required before a court applies a remedy, and if so what is the source of the duty?).

^[2] Moakley v. Smallwood, 826 So. 2d 221, 223 (Fla. 2002) (quoting Bane v. Bane, 775 So. 2d 938, 940 (Fla. 2000) (citing United States Sav. Bank...